In this blog entry I will try to minimize the expression of personal opinions and instead pose one question. But first, some background.

Last week the Supreme Court decided to disallow a huge award of punitive damages to the widow of a smoker. The smoker had smoked two packs of cigarettes a day for 45 years – that’s 657,000 cigarettes, not allowing for leap years – and then died of lung cancer. (I’ll note, just in passing, that he died in 1997, so 33 of his years of smoking went by after the Surgeon General of the United States published his initial warning about the health consequences of smoking.)

The trial jury awarded the widow $821,000 in compensatory damages, where “compensatory” means in payment for her actual loss. A higher court later cut that to $500,000. The jury also awarded punitive damages of $79,500,000, where “punitive” means in retribution against the tobacco company for misbehavior. The misbehavior here evidently was the failure to explain clearly to the smoker that smoking was bad for him.

The Supreme Court majority held that the jury ought to have been told that they could not punish the company for its conduct toward persons not involved in the case, such as all smokers or all smokers in a particular state. One small opinion? This seems fair.

This is just a sample case. Very large punitive damages awards, variously described by the attorneys involved as “just” and “grossly unjust,” have either been increasing in size and frequency or they have not, again depending on whom you ask, but the issue has given rise to sundry proposals for “tort reform.” A tort, by way of review, is a harmful act (other than breach of contract) that is not a criminal one and for which damages may be awarded. Thus, when Judge Joe or Judge Judy has the plaintiff show a body-shop estimate for repairing his car or the cell-phone bill run up by the defendant, he or she is calculating the actual loss incurred, and the monetary award is for that amount (except when Judge Joe throws in an extra C-note because the defendant smart-mouthed him). The theory is that by this means the injured party is made whole, insofar as money can serve to do so. All quite simple, is it not?

Now my question: Why, when the defendant’s conduct is found to be sufficiently egregious as to warrant additional sanction in the form of a monetary levy, is the money awarded to the plaintiff? The plaintiff has been made whole by way of the compensatory damages; isn’t that all he can or should expect of the law? Why, especially in these headline cases, should he be made rich? (This assumes that the lawyers actually leave anything for the widows and orphans they represent.) I’m just asking.

Suppose the punitive damages were treated as public money instead, to be used for some good public purpose. Suppose further that the lawyers were not allowed a cut of the punitive damages. How much more tort reform would we need? Whoops! That’s two questions. So sue me.